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Don't let Dr. 'pass the buck' for disposal of sharps.

CASE ON POINT: Hernandez v. Estate of Hopkins CAAPP2 B192407, (06/26/07)--CA

ISSUE: Are you as careful as you should be in disposing of sharps and bio-hazardous medical waste?

CASE FACTS: Dr. Charles Hopkins, a cardiologist who had practiced for many years, leased office space in the Crenshaw Medical Center. Pursuant to their leases, all tenants in the center were responsible for properly disposing of "sharps" and all medical waste. A professional janitorial service performed routine janitorial work in the various medical offices. This did not include the handling or disposing of "sharps" or other medical waste. The responsibility for that belonged to K&P Janitorial Service, which had sole responsibility for the disposal of sharps and other medical waste, which physicians were required to put in properly designated containers for handling by K&P. No problems arose regarding the proper disposal of sharps and medical waste while Dr. Hopkins was actively engaged in his cardiology practice. By January 1, 2002, Dr. Hopkins was suffering from poor health, including Alzheimer's Disease. Dr. Hopkins, moving toward retirement from the practice of medicine, allowed Dr. Nolan Jones, who practiced obstetrics and gynecology, to occupy his office space until his lease was to end. He believed that Dr. Jones would practice obstetrics and gynecology from the office. Dr. Hopkins did not inform the owners of the building, from whom he leased the office, that Dr. Jones would be occupying his office. In fact, the owner was unaware of Dr. Jones' occupancy of the office until suit was brought against the owner and Dr. Hopkins by Israel Hernandez that provided routine janitorial service (excluding sharps and medical waste which was the sole responsibility of K&P Janitorial service). In his suit, Hernandez alleged that Dr. Jones maintained the office in an "unsanitary condition." He alleged that although the office had containers for disposing of hazardous waste, needles and fetal body parts were repeatedly found in the regular trash. He further alleged that there was a "really foul stench inside." He described plastic bags that were ripped and had blood squirting out onto the floor. Over the course of five or six nights, K&P Janitorial Service's owner took photos showing needles in the ordinary trash. In January of 2002, Mr. Hernandez was pushing down on ordinary trash from a trash bin when he was stuck with a needle that was in the ordinary trash. He immediately reported the needle stick to his supervisor. Subsequently, he was stuck again in February of 2002, under similar circumstances. Prior to his employment with the janitorial service he had tested negative for HIV. However, following the two needle sticks, he tested positive for HIV. He and his wife brought suit against the Estate of Dr. Hopkins, who died in the interim. After a jury trial, the jury returned a verdict for the plaintiffs in the amount of $4,200,000. The verdict included $3,000,000 for non economic damages and $1,300,000 for economic damages. Adjustments were made for the amount of workers' compensation benefits received by Mr. Hernandez. The jury determined that liability should be apportioned and concluded that Dr. Hopkins (through his estate) was 50% liable for damages. Although the court concluded that the doctor who uses or supervises the use or disposal of a sharp instrument is responsible for its proper disposal, there is no mention of Dr. Jones' liability in the case.

COURT'S OPINION: The Court of Appeal of California affirmed the judgment of the trial court, including its calculation of damages. The court held, inter alia, that the trial court did not err in calculating the amount of damages to be awarded to the plaintiff. Further, the court found that trial court had not erred when it ruled that the testimony of the plaintiff's nurse-expert who testified regarding HIV sticks and the applicable standard of care and the breach of that standard, was admissible in evidence.

LEGAL COMMENTARY: Key testimony was provided by the plaintiffs' nurse-expert witness, Margaret Foux, an AIDS Certified Registered Nurse, and Public Health Nurse who managed 300 HIV and AIDS patients at the time of her testimony. The court concluded that the testimony of nurse as to mathematical computations or opinions as to the future economic impact on Mr. Hernandez was not speculative. Nor did the court find that it was speculative in the sense that it was not predicated upon hypotheses that were not warranted by the evidence. The court reached the same conclusion with reference to the nurse's testimony as to what care the patient would require in the future. The testimony of the AIDS Certified Registered Nurse was invaluable in facilitating the calculation of future economic and non-economic damages. The jury was free to accept, or reject, her testimony. Her testimony as to economic and noneconomic damages was vital.

A. David Tammelleo JD Editor & Publisher

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years. he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Nursing Law Case of the Month
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Article Type:Case overview
Date:Feb 1, 2008
Words:939
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